Tuesday, 24 February 2009

In appeals in Federal matters, such as under the Family Law Act, it is possible to obtain certificates from the court which enable lawyers to be paid up to $4000 from the Federal Government. These certificates are issued when the appeal is upheld when the lower court made an error of law.

In Garde and Raddisonthe Full Court of the Family Court summarised the law as to these certificates:

The pre-conditions for the grant of a costs certificate under the Costs Actin sections 6 and 9 have been the subject of several decisions of the FullCourt, the most significant of which is B & B(Costs Certificates) (2007), where the Full Court comprising Finn, May andBolandJJ adopted the principles set out by Kirby J in Cramer & Davies (1997)72 ALJR 146.The three pre-conditions for the grant of a costscertificate under section 6 and section 9 of the Costs Act are:

The existence of a “federal appeal”;

The necessity to establish an appeal has succeeded on a question of law;

The requirement that the court concerned should have heard theappeal.

In relation to the third pre-condition, a broad interpretation of theterm “heard the appeal” should be adopted; meaning that a hearing means no morethan having the matter listed before a court so that it may dispose of theappeal in a public and formal way (Cramer & Davies (1997)72 ALJR 146 at [18] and B & B (Costs Certificates) (2007) FLC 93-339 at81,823.The appeal was listed before us, and as well as handing up a minuteof the orders that the parties sought the court make by consent, oralsubmissions in support of the orders proposed were made. We are thus satisfiedthat the third pre-condition, namely that the court should have heard theappeal, has been satisfied. It is also clear that the appeal is a federal appealand thus the first pre-condition is also met.The second pre-condition, thatthe appeal would have succeeded on a question of law, requires a considerationof the nature of the appeal and the material before the court to determinewhether, had the matter proceeded and been argued and heard, an error of lawwould have clearly been demonstrated.

Monday, 23 February 2009

Family Court judges have been reluctant, for a long time, to make decisions as to credit at an interim stage, because this may have an impact on findings that are made at the ultimate trial of the matter. This issue was less acute when interim hearings involved cross-examination- because judges could see parties in the witness box and might have the opportunity to draw conclusions from that.

For about the last 20 years, however, it has been rare for interim decisions to involve cross-examination - so judges have had to rely on affidavit material from each of the parties which might directly contrast with the other's.

The classic example of where credit issues come into play is when one party, usually the mother, asserts that the other, usually the father, has engaged in domestic violence. The other denies the allegations, or makes other counter-allegations.

In the leading children's decision following the 2006 changes, Goode and Goode, the trial judge when faced with domestic violence allegations refused to make findings about whether or not there had been domestic violence. This decision was upheld on appeal, a matter criticised by noted Brisbane academic Zoe Rathus on this blog in 2007 as The Bad in Goode.

It is with that background that the recent Full Court of the Family Court case of Garde and Raddison is of interest. The father's case was that he wanted interim orders as to joint parental responsibility and shared parenting for the parties' baby. The mother wanted interim orders for the appointment of an independent children's lawyer, a psychiatric assessment of the father, the obtaining of a family report and for the father to have no contact with the baby whatsoever.

The Federal Magistrate made no interim orders and set the matter down for trial. The reasons for judgment were very short. Here they are in their entirety:

The paramount consideration the Court must have regard to in this matter are the best interests of the child.

There is evidence of family violence involving a member of the child’s family. That is a matter the Court must take into account under s.60CC(3)(j) of the Family Law Act 1975.At this stage that evidence cannot be contested or is not being contested. The Court does not feel able to make an order as sought by the father until such evidence is tested.

The Court therefore does not make the order sought by the father on an interim basis.

The matter is adjourned for a final hearing on 23 and 24 April 2009.

The Court does not find factors in existence which warrant the appointment of an Independent Children’s Lawyer and will not request Victorian Legal Aid to arrange such representation.

The mother's case

The mother asserted that she learnt, while pregnant with the child, that the father had been convicted and imprisoned for the murder of his former partner. He served 11 years. She said that she was frightened. She described a pattern of abuse that escalated until after separation. She described obtaining an intervention order. Despite his being bailed by police on condition that he have no contact with the mother, the mother said that the father continued to call her and abuse her.

The mother found about media interest in the father, and then learnt from his former partners (after he had been released from jail) that he had threatened to kill them.

By the time of the hearing, the father had not had time to respond to the mother's material.

The Full Court decision

The Full Court stated:

The reasons for judgment do not shed any light on why no orders were made assought by the parties. It can perhaps be understood why no interim parentingorders were made in light of the material before the Federal Magistrate. Butgiven the nature of the matter, and the fact that the Federal Magistrate set thematter down for final hearing, in a case in which an independent children’slawyer would be warranted (Re:K )expert opinion on such issues of family violence and familicide would beanticipated and in a matter where one party sought that the other party spend notime with the child, it is somewhat surprising that no such orders weremade.

To be fair to the Federal Magistrate, although the mother sought orders forthe appointment of an independent children’s lawyer and a family report in herapplication, in oral submissions her counsel resisted the appointment of anindependent children’s lawyer and did not seek a family report. Nevertheless, ina case in which the inquiry is into the best interests of the child and theissues raised are serious and troubling, a failure to give reasons for notmaking orders as sought by the father in our view constitutes an error oflaw...

While the Federal Magistrate is correct in saying that finding cannotbe made until evidence is tested, there is sufficient concerning evidence on thepart of the mother, which was not the subject of contest, for at least somereasons to be given. For example, there were intervention orders obtained by thepolice and the father had admitted the murder conviction. In a case involvingserious allegations of family violence, an assertion by the mother that thefather may be a candidate for familicide, and considering the expert evidencethat would be required in order to determine this matter at a final hearing,there was in our view an obligation to expose the reasoning leading to theconclusion that no order for appointment of an independent children’s lawyer bemade.

Just to show that the Federal Magistrate did not take the issue of violence seriously, the Full Court stated:

During the course of the proceedings before the Federal Magistrate, counsel forthe mother raised with the Federal Magistrate the prospect of the matter beingtransferred to the Family Court. Counsel noted that it was a matter that wouldtake six to eight days in hearing and referred the Federal Magistrate to themother’s affidavit of some 38 pages. The Federal Magistrate was informed thatthe matter involved a murder conviction, that there would be much psychiatricevidence given as to what the psychiatric state of mind of the father was at thetime the murder was committed and a lot of evidence given. The FederalMagistrate indicated that although there had been a policy that cases beyond twoto three days would not be heard, that policy “was rescinded some months ago.”To be fair, counsel did not press the point and said that it would not be aproblem “as long as we can get 6 to 8 days for the hearing of the trial.” As isalready apparent, both the judgment and the orders note that the matter waslisted for a two day hearing. No explanation of why that occurred appears in thejudgment.

With the matters in this case, how could there be possibly be a just determination of such complex issues in two days?

The Full Court remitted the matter back to the Federal Magistrates Court to be heard by another magistrate.

The Family Court has long held that if a party, usually the husband, has made some special contribution over and above the norm, often due to entrepreunial activity or genius, then that ought to be recognised.

In the recent Full Court of the Family Court case of Wellings and Wellings one of the issues on appeal was whether or not the husband had made a special contribution. Obviously, if he had, he would have ended up with more of the property, and if he had not, he would have ended up with less.

The husband left Australia as a teacher and moved to Hong Kong. On his return 14 years later, the husband came back with $3 million, which he had apparently earned from a horse racing system that he had devised, which because of its nature, was not subject to tax.

When the parties moved to Australia, they moved to the Gold Coast. It was the husband's view that the capital gain on the Gold Coast would be good for investments. By the time of the trial, the $3 million had increased to $5 million.

Was this a special contribution by the husband?

At the trial, the wife's counsel said that it was not, although conceding some benefit in the husband's favour before considering s.75(2) [future] factors, but only in the range of 5-7.5%. The wife's counsel stated that in Hong Kong, the husband:

“earns a good amount of money, inflated somewhat by the fact it’s a tax free environment” and that, as far as the real estate acquisitions on the Gold Coast are concerned, the husband “doesn’t make out a case in his material about some special attributes that he’s brought to it”.

The husband's counsel said that it was one of those rare special contribution cases.

The trial judge held that it was not a special contribution, but awarded him 61% based on his contributions:

The accumulation of data he amassed since 1987

The benefits mostly retained and reinvested, he received in the tax free environment of Hong Kong

His careful selection of the Gold Coast as a location for his attentions as a property investor.

The husband appealed.

The Full Court

Justice May, sitting as the Full Court held:

The conclusions of his Honour in relation to the argument about “specialcontributions” could not be successfully challenged. However that does not leadto the inevitable result that the finding of 61 per cent to the husband and 39per cent to the wife was either within or outside the range.In my view thecontribution of the husband was overwhelming and the financial result entirelyclear as demonstrated in the judgment. In addition, post separation the husbandmaintained the assets, cared for the children financially and physicallyincluding for a period of five months in 2006 solely, and otherwise has made anequal contribution since separation to non financial matters most importantlythe children.Taking into account his Honour’s findings, the circumstancesboth during the marriage and up to the date of trial the result arrived at byhis Honour was outside the range.

Her Honour ordered that the division be 67%/33% in favour of the husband, or $300,000 greater to the husband than that awarded by the trial judge.

Sunday, 22 February 2009

In the recent Full Court of the Family Court case of Davey and Davey, the husband appealed against a security for costs order which required him to:

provide security for costs to the solicitors' trust accounts of the wife and of their son

before the conciliation conference was held

and if he did not do so, then his claim was stayed

and after the conciliation conference and before the trial, or his claim was stayed.

A security for costs order can be made where it is considered that the chances of success of the claim are low and money ought to be put forward now so that if that party loses, and a costs order is made against that party, then the other party has a means to be able to receive costs.

Applications for security for costs are rarely brought, because the courts are concerned that they might have the effect of denying people rights to argue their case in court.

A conciliation conference is a compulsory conference held in property matters which is aimed to try and settle matters and avoid trial.

The husband had no property. Justice May, sitting as the Full Court, held that the husband's claim had "limited prospects" and that it was therefore appropriate for a security for costs order to be made for after the conciliation conference.

Her Honour held:

It was not a proper exercise of his Honour’s discretion to make the orderrequiring security for the conciliation conference particularly in view ofhis findings as to the husband’s financial position.In addition, it was not proper to order that without paying the costs of the hearing before his Honour the conciliation conference could not proceed.

In the Full Court of the Family Court case of Batey-Elton and Elton (No.2), Ms Batey-Elton sought that a Mr B appear for her on the appeal. Mr B was not a lawyer.

The Full Court dismissed the request. Justice Warnick (who gave the lead judgment) stated that the reasons were:

advocates or speakers on behalf of litigants should be legal practitioners who are subject to all of the strictures and obligations that apply to them. Mr B does not fit into that category.

in an extraordinary case a non-lawyer might be permitted to speak on behalf of a litigant but this was not an extraordinary case.

Ms Batey-Elton is able, in effect, to present and support her application. What she anticipates not being able to deal with, are responses. We do not yet know whether any response will be called for or whether it will contain any matter of some nature which troubles Ms Batey-Elton.

Mr B is a deponent in the very application in which Ms Batey-Elton seeks that he speak, effectively in the role as advocate, and I have in mind the nature of the matters about which he deposes.

there is no medical certificate supporting what Ms Batey-Elton claims.

Saturday, 21 February 2009

The Full Court of the Family Court in Trahn and Long (No 2) has set out the principles of stay applications.

Stays have the effect of freezing a judge's original order while waiting the outcome of an appeal.

The Full Court held:

The authorities stress the discretionary nature of the application whichshould be determined on its merits. Principles relevant to this matter includedthe following:

the onus to establish a proper basis for the stay is on the applicant forthe stay however it is not necessary for the applicant to demonstrate “special”or “exceptional” circumstances;a person who has obtained a judgment isentitled to the benefit of that judgment;

the person who has obtained a judgment is entitled to presume the judgmentis correct;

the mere filing of an appeal is insufficient to ground a stay;

the bonafides of the applicant;

a stay may be granted on terms that are fair to all parties – this mayinvolve a court weighing the balance of convenience and the competing rights of the parties;

a weighing of the risk that an appeal may be rendered nugatory if a stay isnot granted – this will be a substantial factor in determining whether it willbe appropriate to grant the stay;

some preliminary assessment of the strength of the proposed appeal - whetherthe appellant has an arguable case;

the desirability of limiting the frequency of any change in a child’s livingarrangements;

the period of time in which the appeal can be heard and whether existingsatisfactory arrangements may support the granting of a stay for a short period of time; and

Attorney-General Robert McClelland today thanked the family law practitioners attending the Inaugural Family Law System Conference for the enthusiasm and commitment shown during discussions on new and innovative ways to improve the family law system.The two-day conference has been attended by almost 200 representatives from the courts, legal practitioners, legal aid, community legal services and family relationship services.It identified access to justice and building an integrated family law system as important targets for the future.Mr McClelland said conference participants had discussed a broad range of issues, including assessing clients’ needs, referral and information sharing, and working together for better outcomes.“The conference was an unprecedented opportunity for family law practitioners to come together and discuss how to improve outcomes for families who access the family law system,” he said.“It is essential that we keep searching and identifying ways to improve how the family law system works.”Following the success of this year’s inaugural conference, Mr McClelland has announced that the conference will become an annual event.

Friday, 20 February 2009

Federal Attorney-General has opened the inaugural Family Law System Conference in Canberra, tot which 200 handpicked delegates were invited, including my partner Julie Harrington. Here is an edited version of the Attorney's speech:

3. While there have been a number of positivechanges made to the family law system recently,I think that the recent tragic death of DarceyFreeman reminds us that we can never becomplacent about reviewing what can be donebetter.4. My vision for the family law system is one thatis fair, simple, affordable and accessible by all.A system in which all the elements workseamlessly together.A system that addresses the often complex needsof families and is able to respond to differentcircumstances such as family violence, childabuse, mental health issues, drug and alcoholabuse.And a system that ensures that the best interestsof children are paramount.5. My vision can only be achieved by all of ushaving a common goal and working together asa unified family law system.6. In these difficult economic times it is moreimportant than ever that our justice system beaccessible and effective not only to deal with anincreased number of financial disputes -including an increase in personal insolvency andconsumer credit and debt - but also to deal withthe inevitable increased stress on families andincrease in family breakdown.7. Well targeted legal assistance programs are alsoa key part of ensuring families, especiallydisadvantaged and vulnerable families, are ableto get legal assistance to understand their rightsand responsibilities – and help them resolvetheir family law matters.8. I am pleased that the theme of the conference isfocused on achieving better access to justice.9. Access to justice is not only about the courts andthe legal system, it extends to the many wayspeople try to make sense of the laws that relateto them in daily life, and the situations wherethey may feel their rights are being affected.10. It’s about ensuring our legal system providessufficient flexibility so that people have a rangeof options available, from formal alternativedispute resolution processes to informalnegotiations.11. But it is not just about dispute resolution.People must be able to understand the law if it isto be effective.A key component of a proper approach toenhancing access to justice of all Australiansshould include increasing individuals’ capacityto access and understand information.12. The current civil courts system is achievinggood results for many Australian families.However, it can and must do better for allAustralian families.13. We need to keep looking for innovative ways toimprove the family law system to ensure that itis fair, simple, affordable and accessible by all.14. In other areas of law, the government is alsotaking action to improve access to justiceincluding to address the cost of justice.

Integrated Family Law System15. We need to focus on strengthening services andstrengthening relationships in the family lawsystem.16. Enhancing communication and professionallinks is essential in this.17. That is why in July last year I convened aroundtable, with representatives from keyorganisations in the family law system, toidentify ways to improve integration in thesystem and better manage entrenched conflict.18. The outcomes from the roundtable have formedthe agenda for this conference.19. A key aim for the next two days is to look atways to build an integrated family law systemthat encompasses the courts, legal aidcommissions, community legal centres, privatepractitioners, government-funded familyrelationship services and government agencies.20. To achieve this, the conference will explore thedevelopment of an agreed national blueprint toidentify clear client pathways and ensure thatclients exit the system with the best possibleoutcome, regardless of the entry point.Family Violence and Child Abuse21. It is critically important that in developing thisblueprint we focus on improving outcomes forchildren in high conflict disputes.22. It is an unacceptable statistic that violence,abuse and assault afflict one in three Australianwomen and their families.Most of you would be aware that the AustralianGovernment is working together to addressthese issues.23. The Rudd Government is currently developinga national plan to reduce violence againstwomen and their children, and a national childprotection framework.24. These strategies will, in part, deal withimproving the way cases involving familyviolence and child abuse are managed andensure that the family law system is effective inhandling such cases.25. The family law system already plays an integralrole identifying children at risk and helping toprotect people, but more could be done.26. We all have a responsibility to be vigilant inscreening and identifying, at the earliest possiblestage, at-risk families and taking steps to ensurethat they are supported through the system.27. We must also find better ways of working acrossCommonwealth and State jurisdictions.This means ensuring family court judges haveall information available about risks to childrenat the earliest opportunity.28. We must make sure that the Commonwealthand the States are not spending time creatingmore work for each other, instead of focusing onthe best interests of children.And this means the system must be flexibleenough to enable the courts to consider alloptions for children.29. So we’re looking for solutions where access iseasier, where delivery is more effective andtimely, and where children can receive betteroutcomes....Courts31. We also need to develop a framework to helppeople who are unable to agree onarrangements for their children to resolveconflicts fairly, simply and effectively.32. To help achieve this, I am considering a broadrange of options to make our federal courtsmore flexible, and to minimise the costs oflitigation.33. My view is that separating families and childrenshould not have to work through their issuesalone, but should be able to access services toassist them through the process.34. Where they are unable to resolve differences,court resources and services should be availableto ensure issues in dispute are identified earlyand resolved.35. Last year my Department, assisted byconsultant Des Semple, conducted a review offamily law services provided by the federalcourts.36. A report was released in November, along witha consultation paper, seeking further publiccomment on the review’s recommendations andproposed initiatives to streamline procedures infamily law matters.37. The consultation finished earlier this month andI’m now considering the submissions that havebeen made...40. It’s also of critical importance to the communitythat we have effective and timely delivery ofjustice.Alternatives to Courts41. One matter you will have the opportunity todebate tomorrow is whether court should be theonly option when parents can’t agree.42. Currently, litigation is the only arena for thosefamilies unable to reach agreement throughdispute resolution services....[Legal Assistance]44. Legal assistance services are also integral to aneffective family law system....46. Early legal assistance can help to ensure legalproblems can be resolved early before theyescalate or contribute to entrencheddisadvantage...A significant part – about 82 per cent – of allCommonwealth legal assistance services isfocused on prevention and early interventionthrough community legal education, advice andmediation services.49. I have asked my Department to develop astrategic framework, taking a holistic approachto the management of Commonwealth legalassistance programs.50. The framework will be aimed at improvingaccess to justice for the most disadvantagedfamilies by building links between programs,facilitating resource sharing and deliveringservices collaboratively.51. I will also be working with my counterparts inthe States and Territories to develop a whole ofgovernment approach to achieve collaborationin the delivery of legal assistance services, toachieve real benefits for vulnerable families.52. The family law system also needs to be sensitiveto the family relationship issues experienced byIndigenous and culturally and linguisticallydiverse people.We need to consider innovations to the justicesystem more broadly that better engageIndigenous Australians and break cycles ofcrime and violence in Indigenous families andcommunities.

Thursday, 19 February 2009

It is now an offence in the NT not to report serious domestic violence. It is no longer an option there to remain silent.

Here is the media release from the NT Government:

18 February 2009World First For Mandatory Reporting of Domestic ViolenceIn a world first, the reporting of domestic violence will become mandatory, following the passage of groundbreaking new laws in Parliament today.

“Domestic violence tears families apart, and women and children are often the most vulnerable,” Chief Minister Paul Henderson said.

“The Northern Territory Government is saying enough is enough and this will not be tolerated anymore.”

The laws will protect women and children from family violence. The NT Government will commit $15 million over four years to support more crisis accommodation, increased counselling services and continuing public education campaigns surrounding the new law.

Minister for Children and Families Malarndirri McCarthy said a major advertising campaign would be launched later this year to inform the community about the new reporting laws for domestic and family violence.

“About half the assaults in the Territory each year are cases of domestic violence. We’re showing leadership in tackling domestic violence by introducing these unprecedented laws,” Ms McCarthy said.

“We are sending a message to the community that abuse against women and children is unacceptable. A big part of the education campaign involves men spreading the message that domestic violence will not be tolerated.”

Attorney-General Delia Lawrie said today’s passage of the legislation was a major step towards breaking the cycle of violence against women and children.

“The Henderson Government wants to change society’s attitudes and make a difference for all Territorians now and in the future.”

The law requires all adults to report domestic violence if they believe another person’s life is in danger or they believe a person has caused, or is about to cause, serious harm to another person in a domestic relationship.

An independent children's lawyer is a lawyer, who is independent of the parties who has a duty to act in the best interests of the child or children the subject of proceedings under the Family Law Act, typically in the Federal Magistrates Court or the Family Court.

Who pays for an independent children's lawyer?

Most of the cost of an independent children's lawyer is met by the taxpayer, through the Commonwealth Government. The management of that cost is administered by the various Legal Aid Commissions, for example, the Legal Aid Commission of NSW.

The Commonwealth sets out guidelines requiring the Legal Aid Commissions to obtain payment form each of the parents (or other parties) of a contribution to their costs. This can be by way of a costs order, but typically it is a one-off initial payment, often of $3300 each.

Many people do not have to pay because they meet exemptions, eg they receive Centrelink benefits or they receive legal aid.

What does an independent children's lawyer do?

Typically they have to form an independent opinion of the matter and tell the judge. To form that opinion often requires that they will obtain reports, and cause subpoenas to issue, as well as cross-examining witnesses.

How is an independent children's lawyer appointed?

A court exercising power under the Family Law Act, typically the Federal Magistrates Court or the Family Court, will make an order for appointment. The order will then be sent to the local Legal Aid Commission, which will then choose an independent children's lawyer from its panel.

Independent children's lawyers typically are experienced family lawyers who have undergone training for this role and been chosen to be on the panel. Undertaking training is no guarantee of being chosen.

When will the court order the appointment of an independent children's lawyer?

The Family Court set out the guidelines for appointment as long ago as 1994. Just because any of the guidelines is met does not mean that there will be an order- it is a matter of discretion (and funding availability), but only one ground is needed.

(i) Cases involve allegations of child abuse, whether physical, sexual or psychological.(ii) Cases where there is an apparently intractable conflict between the parents.(iii) Cases where the child is apparently alienated from one or both parents.(iv) Where there are real issues of cultural or religious difference affecting the child.(v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare.(vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare, for example serious domestic violence.(vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children.(viii) Any case in which, on the material filed by the parents, neither seems a suitable carer.(ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent.(x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child.(xi) Cases where it is proposed to separate siblings.(xii) Custody cases where none of the parties are legally represented.(xiii) Applications in the Court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

What duties does an independent children's lawyer have?

These are set out in the Family Law Act:(a) act impartially in dealings with the parties to the proceedings; and (b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and (c) if a report or other document that relates to the child is to be used in the proceedings: (i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and (ii) ensure that those matters are properly drawn to the court’s attention; and (d) endeavour to minimise the trauma to the child associated with the proceedings; and (e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

The general role of an independent children's lawyer is set out in the Family Law Act:

The independent children’s lawyer must: (a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and (b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

The independent children’s lawyer: (a) is not the child’s legal representative; and (b) is not obliged to act on the child’s instructions in relation to the proceedings.

This morning in Canberra, the Federal Government under the leadership of Attorney-General Robert McClelland, is hosting a family law summit. The Government handpicked 200 delegates, including lawyers, judges, family dispute resolution professionals, legal aid officials and the like to discuss issues affecting family law. Topics include child support and online support.

One of the delegates is my partner, Julie Harrington, who was invited by virtue of her chairing the Queensland Law Society Family Law Section.

The reality about family law is that it will constantly change, both to reflect the whims and expectations of government, but hopefully also to reflect the needs of society. Current challenges include the Semple review of the Family and Federal Magistrates Courts, and the increase in jurisdiction of the Family and Federal Magistrates Courts on 1 March when the de facto property changes take effect in all States other than South Australia and Western Australia.

I don't know if this is the first family law summit ever, but I do not recall one ever being held in the past.

Wednesday, 18 February 2009

To misquote Somerset Maugham about economic independence, "he who pays the piper calls the tune" is the kind of quote that was dear to the Commissioner of Taxation in the recent Family Court case of Commissioner of Taxation & Worsnop & Worsnop.

Mr and Mrs Worsnop led a life that most of us would probably love- fast cars, tons of overseas travel, luxury living, a life of which Scheherazade would be proud- but there was only problem: Mr Worsnop had not paid his tax. Lots and lots of tax. In fact by the time of trial, with penalties and interest thrown in, over $12 million of unpaid tax.

Not wanting to risk the ire of the Commissioner, the husband on separating from his wife obtained legal advice and decided to 'fess up to the Commissioner about the unpaid tax. After some audits, the husband incurred (and paid) legal fees in excess of $1 million.

What was left? About $5 million left in the house and both the wife and the Commissioner wanted the lot.

The result? The trial judge, Justice Rose, gave them 50/50.

The trial judge found that the wife did not know nor did she ought to have known that the husband had not paid his tax.

The Commissioner, unhappy at not getting the lot, appealed.

The Commissioner's contentions

Counsel for the Commissioner contended:

... the following principles apply when dealing with debt legitimately owing to unsecured third parties (including but not limited to taxation debt), in the course of proceedings pursuant to section 79 of the Family Law Act [the section dealing with property settlement]:

That except in exceptional circumstances the Family Court should make orders for property settlement out of the net property of the parties to the marriage.

That in considering any adjustment pursuant to section 75(2) [future factors] the Court must consider the use to which the funds were put and the benefits received by each party from those funds.

That a party who has had the benefit of the funds should share the burden of repayment of the debt.

That a party to a marriage who has, whether knowingly or not, had the benefit of money or property available only as a consequence of their partner’s dishonesty, should share equally the burden of any debt thereby created.

That in order to achieve justice and equity for all parties including the creditor, the Court must consider making an adjustment pursuant to section 75(2)(ha) to benefit the creditor.

That the Court cannot ignore the contribution made to the acquisition of assets and the lifestyle of the parties by the creditor.

Contention 1

The Full Court responded:

There being an exception within the proposition itself, even if we thought theproposition sound, the question in this appeal would arise as to whether thecircumstances before the trial Judge were exceptional or not.We furtherobserve that the proposition is expressed in relation to cases in which there is“net property”. The instant case immediately falls outside that category. In theinstant case, the critical tension arises precisely because such legitimateclaims as the wife has to a share of property cannot be met out of net assets.

The Full Court was then at pains to point out that there was no net property in this case, because the debt owing to the Commissioner was greater than the value of the property.

Contentions 2,3 and 6

The Full Court said:

Our reservations about these propositions are that they couch in mandatoryand absolute terms, factors which, though they may often carry great weight, areultimately ones, usually among numerous others, upon which a discretion might beexercised.Secondly, in the first of the three propositions under discussionhere, there is a reference to an obligation on the Court to consider thebenefits received by each party from [a creditor’s] funds, in considering anyadjustment pursuant to s 75(2).Here, we are simply concerned to reject any implication that the only stage ofthe approach to property settlement at which the question of a debt might beconsidered is when considering s 75(2)factors.Those things said, we accept that it is highly unlikely that theuse to which funds were put and the benefits received by each party from thosefunds would not be a significant consideration when addressing the position ofan unsecured creditor, whose prospects of recovery of debt are uncertain.

Contention 4

The Full Court held:

Again, we would disagree with the formulation ofthe proposition as a principle to be mandatorily applied, rather thanrecognition of the factors as ones highly likely to be powerfully relevant to anexercise of discretion.As the proposition is expressed, and as part of hisargument in support of it, Mr Lethbridge contended that “knowledge” of thedebtor spouse’s wrongdoing by the other spouse was irrelevant, in the othercircumstances posited. We note that the Commissioner pursued the question ofknowledge of the wife at trial, though he ultimately also submitted that thequestion was irrelevant to the proper outcome. In any event, we do not suggestthat Mr Lethbridge is not free to argue as he now does.We think thatin circumstances such as those in the instant case, this argument might carrymore weight in respect to a debt for prime tax, than in relation to interest andpenalties. An “innocent” spouse might receive benefit from funds which ought tohave been paid to tax but will receive no benefit from penalties and interest inrelation to unpaid tax. While we recognise an argument that when prime tax isavoided, penalties and interest are consequential liabilities, and thus,connected to the benefit of avoidance, logically the question of innocence orignorance on the part of the recipient might properly be relevant to thequestion of whether penalties and interest ought be met entirely by the guiltyspouse.

That the matter of “knowledge” was relevant in like circumstances wasrecognised, at least implicitly, in Johnson and Johnson [1999]FamCA 369 (referred to earlier in a passage quoted from Rose J’sreasons), when the Full Court said:“20.5 In our view the fact that the wifewas or was not involved in the tax avoidance process which may lead to theimposition of penalties was only one consideration that his Honour needed toweigh up when determining liability for the penalties as between the parties.The benefits indirectly gained by the wife in having the pool of assetsotherwise increased as a result of the availability of funds which would haveotherwise been paid out in tax also have to be considered. (emphasisadded)In Johnson, (supra) there was no argument about the decision of thetrial Judge to order that the parties share the prime tax in accordance with thepercentage distribution of assets, so the Full Court was concerned only with thetrial Judge’s decision that penalties be borne solely by the husband.Rose J said of what was said in Johnson (supra) as quoted above and ofwhat immediately followed:The Full Court proceeded to also state that“unless there were compelling circumstances to the contrary, a just outcomedemanded that the wife take the good with the bad”.(footnote omitted)In myview, those extracts from the Johnson [sic] was directed to the emphasis in the“consideration” that must be given by the trial judge to the claim of theunsecured third party creditor which in that instance was the ATO, as in thepresent case. Otherwise, the decision was made on the particular facts in thatcase but did not establish any further matter of principle. ...(originalemphasis)We agree. Knowledge of the debtor spouse’s tax avoidance is afactor relevant to the exercise of discretion, as the Full Court in Johnson(supra), in respect of penalties, stated. In our view, though as we said a shorttime ago, the question of innocence or ignorance in a spouse of the otherspouse’s tax avoidance may carry more weight in respect of penalties, we see noreason why that question might not also be relevant to the issue of unpaid primetax, even if the “innocent spouse” has received benefit from the failure to paytax. It might be that “knowledge” would be almost irrelevant, where net assets,sufficient to meet reasonable claims under s 79,remained after payment of any debt for prime tax, but “knowledge” might comeinto much sharper focus where liabilities exceeded assets.

Contention 5

The Full Court stated:

The wording of this proposition may imply that intervening unsecuredcreditors gain some right or status from sub-paragraph (ha), additional tothat which they otherwise have at law.Rose J addressed the terms of s 75(2)(ha),when assessing s 75(2)factors. He said:The liability to the ATO cannot be considered merely interms of the husband’s personal liability.Section75(2)(ha) refers to a matter which has prominence in these proceedings,namely:“The effect of any proposed order on the ability of a creditor of aparty to recover the creditor’s debt, so far as that effect isrelevant.”...

While it is well-established that under s 79the Court may make orders within a s 79order, for payment by a spouse, or by both spouses, of a debt to a third party,whether that third party has intervened or not, in our view the s 79(2)requirement that an order under the section not be made unless it is just andequitable to do so, relates to the order made pursuant to s79(1). Altering the interests of the parties to the marriage in the propertydoes not mean that an intervening third party creditor acquires by interventionsome rights based on s 79(2)for a just and equitable remedy, that are additional to the creditor’s otherrights at law.

Mr Lethbridge also referred to the terms of s 90AE(3)(d)of the Act, which is one of the conditions which must be met if an order is madechanging a third party’s rights under the preceding subsections.Sub-paragraph (d) requires that the Court be satisfied that in all thecircumstances, it is just and equitable to make the order. However, thisrequirement is in respect of the Court’s direct interference with a thirdparty’s rights, for example, in respect of a creditor, rights relating to theperson from whom recovery may be sought. In contrast, the aspect of a creditor’sposition to which the Court must have regard under s 75(2)(ha)are not rights to recovery but the practical prospects of recovery from a debtorspouse’s property.For example, one might imagine a circumstance where onespouse’s initial contributions and the shortness of the marriage might mean thatthe great bulk of property existing at the time of a property settlement trialhad belonged to, and does belong to, that spouse and that position ought not bealtered under s 79.In the meantime, a creditor might have lent, perhaps unwisely, to the otherspouse, who lost the borrowed money and could not repay from his or her ownassets. As we have said, we do not think that in such circumstances, either s 79(2)or s 75(2)(ha)has the result that the creditor has some opportunity, on the basis of justiceand equity, of improving the position that the creditor would have been in hadhe pursued the debtor spouse alone. In other words, the creditor who becomes aparty does not step up in status to become entitled to greater “justice andequity” than the non-party creditor.This does not mean that the principlesof fairness, justice and equity to a creditor ought not be addressed, wherethere is in prospect a reduction in the property of the debtor spouse, for thepurpose of satisfying the s 79claim of the other spouse, which reduction might adversely effect the prospectsof recovery of the creditor, but this position does not arise because of theapplication of s 79(2).

Did the trial judge, Justice Rose, err in his discretion?

Justice Rose split the value of the home 50/50. The Full Court stated that he did not err, and dismissed the Commissioner's appeal.

The Full Court stated:

In our view, Rose J clearly appreciated the critical features of theexercise he was called upon to carry out; that is, the balancing of the claimsof the wife against those of the Commissioner.As to the wife’s position,during the decade when tax was avoided, she continued to make significantcontributions of the nature recognised under s 79,in the context where she was denied the choices that would have been hers, hadthe husband informed her of his avoidance of tax. On the findings thatRose J made about the wife, her innocence of even any knowledge of the taxevasion, let alone complicity in it, her suggestions to the husband from time totime that they live a less extravagant lifestyle, her equality of contributionsto those of the husband and the s 75(2)factors that favoured her significantly, her claims were weighty.Againstthis was the position of the Commissioner. In our view, the Commissioner ofTaxation is in a position distinguishable from that of a commercial creditor.Commercial creditors have a choice about to whom they extend credit. On theother hand, the position of the Commissioner as a creditor of taxpayers is of acompletely different origin. The onus is on taxpayers to make full and properdisclosure to the Commissioner of Taxation. The Commissioner does not extendcredit at all, but becomes a creditor by virtue of the conduct of the affairs ofthe taxpayer. As seen, Rose J gave “...much weight to the fact that theoutstanding tax indebtedness of the husband is a debt to the Crown andimplicitly there is a public interest issue”, though he also recognised that theCommissioner had no priority over the wife’s claims....

Rose J balanced these competing claims by depriving the wife of anadjustment to which he saw her as otherwise entitled, on account of s 75(2)factors, and of an adjustment for the notional asset represented by thehusband’s paid legal costs, and of one-half of the monies in the controlledmonies account and the B property.As seen, Rose J regarded the s 75(2)factors favouring an adjustment to the wife as significant. We agree. She had inher primary care four children, at trial aged between 1¾ years and13 years. Rose J found that though she had capacity for employment,child care responsibilities prevented her from exercising it. If the wife hadbeen granted a 10 or 15 per cent adjustment on account of s 75(2)factors, applied to the value of the former matrimonial home, she would havereceived in the order of $500,000.00 more. Had Rose J notionally writtenback in the husband’s legal fees, and divided the former matrimonial homeproceeds to provide one-half of that notional asset to the wife, together withhalf of the account and B property, she would have received another $700,000.00approximately. Thus, the wife has been deprived of large entitlements otherwisemade out, to reflect the debt to the Commissioner.Nonetheless, inendeavouring to persuade us that the Commissioner should have received the wholeof the former matrimonial home sale proceeds, Mr Lethbridge returned toJohnson and Johnson (supra), in particular where the Full Court said:20.4 Weare of the view that his Honour’s discretion miscarried when he failed toprovide for the wife to share in any penalties that may be imposed by thetaxation commissioner....20.6 In the context of an examination of twentyyears of financial dealings by the parties, which dealings were almost entirelywithin the province of the husband, in our view, unless there were compellingcircumstances to the contrary, a just outcome demanded that the wife take thegood with the bad...20.7 ...Absent any suggestion that the husband was on afrolic of his own and acting contrary to the wife’s express wishes, we see noreason for his Honour to have left the husband to shoulder the burden of the taxpenalties.As we earlier indicated, and we noted Rose J found, thedecision in Johnson (supra) was no more than the opinion of that Full Court asto the proper exercise of discretion in that case. Moreover, in Johnson, as withBiltoft and Kowaliw, there was no question of the propriety of an “innocent”spouse receiving nothing, to be weighed against the claims of a creditor. Theassets of the parties in Johnson were some $30,000,000.00, the debt to theCommissioner $8,000,000.00, of which penalties, the only part with which theFull Court was concerned, were $1,000,000.00.Mr Lethbridge alsosubmitted that the wife’s knowledge, as transferee of the husband’shalf-interest in the former matrimonial home, of the reasons for that transferhad some relevance to the balancing of her claims against those of theCommissioner. Rose J found:201. ... The evidence is that the purpose ofthe transfer was to protect the property from the potential claims of thirdparty commercial creditors. I have accepted that evidence.At best,Rose J’s finding can only relate to the wife’s receipt of the husband’shalf-interest, which by Rose J’s orders was to go in reduction of the taxdebt.In any event, even if we took up the approach of the Full Court inJohnson, and applied it to the entire tax debt here, Rose J effectivelyfound that the husband was on “a frolic of his own”. As to whether this wascontrary to the wife’s express wishes, that could hardly be a fair questionwhere the wife was, as Rose J found, kept uninformed. Thus, the wife’sposition would likely fall within the exception that the Court in Johnson,acknowledged....

As earlier seen in Johnson, in relation to penalties owing to theCommissioner, the Full Court said “unless there were compelling reasons to thecontrary, a just outcome demanded that the wife take the good with the bad”.While we have already said that we do not take that statement as one ofprinciple to be applied in every case in which there is a debt to theCommissioner, whether in respect of primary tax or penalties, we think that, inmany cases, where the debt is for primary tax, the statement is likely todescribe a proper balance between the interests of the debtor party’s spouse andthe Commissioner, even where that spouse is “innocent” and the liability to theCommissioner exceeds the assets.Had the focus before Rose J been morealong the lines of identifying (and calculating the monetary representation of)“compelling reasons” for an award to the wife, then apart from the questions ofher “innocence” in relation to tax evasion, her contributions relevant under s 79of the Act and other s 75(2)factors, there may have been closer examination of the needs of the wife forbasic housing and sufficient other capital to set up a modest standard of livingfor herself and the children. The future support of the wife and children mighthave been seen as properly coming from her earning capacity (when she was ableto exercise it), the husband’s earning capacity and, if necessary, socialsecurity. We think a decision that the wife receive no more than that might wellhave been open, when a huge debt resulting from tax evasion, albeit by herhusband without her knowledge, would remain. After provision for the wife on thebasis stated, the balance of the former matrimonial home sale proceeds couldhave gone to the Commissioner.

I've joined the Association of Family and Conciliation Courts. The AFCC has about 3000 members- not just family lawyers like me, but also judges, mediators, counsellors, psychologists and others, who are focussed on family law.

Starting in California in 1963, the AFCC is an international association of over 3000 members. Its mission is:

AFCC is an interdisciplinary, international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict.

AFCC promotes a collaborative approach to serving the needs of children among those who work in and with family law systems, encouraging education, research and innovation and identifying best practices.

Vision

A justice system in which all professionals work collaboratively through education, support, and access to services to achieve the best possible outcome for children and families.

Values

Collaboration and respect among professions and disciplines

Learning through inquiry, discussion and debate

Innovation in addressing the needs of families and children in conflict

Empowering families to resolve conflict and make decisions about their future

Friday, 13 February 2009

Years after the husband and wife had separated and then divorced, their son, aged 17, died. He left behind about $80,000 worth of superannuation. He had no will and nominated his mother as beneficiary. Who was to receive it?

The mother obtained a determination from the trustee of the super fund that because she and the son were in an interdependent relationship (and because in the trustee's opinion the son and father were not), she should receive 100%.

Not surprisingly, the father didn't like that one bit and took the matter to the Superannuation Complaints Tribunal.

The Tribunal ruled that mum and dad were to get 50% each because, in considering interdependent relationships:

A close personal relationship-The mother had a close personal relationship with her sor.

They live together - While the sonspent some time with his father, he lived with his mother.

One or each of them provides the other with financial support-The mother provided financial support to the son.

One of each of them provides the otherwith domestic support and personal care-The mother provided domestic support and personal care.

However, when reviewing the factors set outin the regulations that are to be taken into account when determining whether or not an interdependency relationship existed, the Tribunal found that

many of the factors are either irrelevant(due to the parent child relationship) or are inapplicable in the circumstances (for example the mother did not own property jointly with the son or operate a joint bank account with him).

There was no indication that the son would permanently live with the mother, and whilst the parental relationship would be lifelong, there was no intention that any interdependency relationship (assuming for these purposes that such a relationship existed) would be permanent.

Both the mother and the father had a close personal relationship with the son and provided him with financial and other support. However, neither was in an interdependency relationship with him.

Therefore, a fair and reasonable distribution of the benefit would be for the mother and the father to receive equal shares.

Tuesday, 10 February 2009

The Queensland Government has introduced today the Adoption Bill into the Queensland Parliament, to replace the antiquated Adoption of Children Act 1964. The Minister responsible, Margaret Keech, said about the Bill:

it was "delivering fair laws to those people affected by adoption"

it reflected "contemporary community standards"

"Eligibility to lodge expressions of interest to adopt will be extended from married couples to de facto couples who have been in a relationship for at least two years."

was "in line with the Bligh government’s vision for a fairer Queensland"

by now requiring adoption orders to be made by a court, "provides for this and brings Queensland into line with every other Australian jurisdiction".

"The current objective is to identify the best possible prospective adoptive families to meet the needs of the small number of children who require adoptive parents."

"Finally, in line with the Bligh Government’s vision for a fairer Queensland,I am proud this Bill is a very progressive piece of new legislation which will bring Queensland’s adoption practice in line with international best practice." (emphasis added)

The Bill will remove the discrimination that exists in the 1964 Act against heterosexual de facto couples, but not against same sex couples.

Just so that it is clear, the Bill is expressed to override the Anti-Discrimination Act. The only obvious reason for this is so that same sex couples can be discriminated against.

This approach is different to that in places such as Western Australia and the ACT where same sex couples can adopt.

The Australian Law Reform Commission is conducting a national phone in on Commonwealth secrecy laws. These laws include those regulating the Child Support Agency, and section 121 of the Family Law Act, that prevents the media publishing details of family law cases.

The Australian Law Reform Commission media release is here:

National Phone-in and Blog on Commonwealth Secrecy Laws Launched

The Australian Law Reform Commission (ALRC) today announced a national two day phone-in and new online discussion forum as part of its commitment to engaging in widespread community consultation on reform of Commonwealth secrecy laws.

Anyone who has ever been involved in handling Commonwealth information will have the chance to speak out about their personal experiences and concerns in a national secrecy phone-in on Wednesday 11 February and Thursday 12 February. The ALRC is also launching a new consultation vehicle through its Talking Secrecy online forum.

ALRC President, Professor David Weisbrot, said “Consultation is part of the ALRC’s DNA and we are determined to use new technologies to expand that process. The online forum and national phone-in together comprise the next critical steps in the ALRC’s consultation process following the recent release of the Issues Paper, Review of Secrecy Laws (IP 34, 2008). This paper seeks feedback about how to balance the need to maintain an open and transparent government, while still protecting some Commonwealth documents and information—for the purposes of national security, for example.

“The ALRC now has mapped over 500 secrecy provisions spread across 173 pieces of legislation and these—associated with a myriad of administrative, civil and criminal penalties—present a complex and confusing scenario of options for individuals handling Commonwealth information.“Some secrecy provisions—normally pertaining to defence and security—regulate the activities of anyone, including the media, who comes into possession of Commonwealth documents or information, imposing obligations on them. If the individual handles the information incorrectly, he or she may face heavy penalties, including jail.”

Commissioner-in-charge of the Secrecy Inquiry, Professor Rosalind Croucher, said that the phone-in will enable individuals to speak about their personal experiences with complete anonymity and will assist in shaping the development of proposals, and ultimately recommendations, for workable laws and practices.

“To facilitate more public discussion about secrecy laws, the ALRC’s Talking Secrecy online forum will encourage interactive comments and debate that will run the course of the Inquiry. This is a first for the ALRC.

“The ALRC would like to hear people’s views about a range of questions such as: do secrecy laws stop you from doing your job; what information, if any, should be kept secret; how easy is it to comply with secrecy laws; when should you be allowed to disclose Commonwealth information; and have you or someone you know been in trouble for breaching a secrecy law and, if so, what happened?”

To participate in the secrecy phone-in call 1800 760 291 between 8:00am and 8:00pm (EST) onWednesday 11 February and Thursday 12 February 2009 (calls are free from landlines but calls from mobiles will incur a charge).

Monday, 9 February 2009

The US Department of Justice's Bureau of Justice Statistics has released the most comprehensive report on stalking yet undertaken anywhere.

An estimated 3.4 million people identified themselves as victims of stalking during a 12 month period in 2005 and 2006. Stalking was defined for the survey as a course of conduct directed at a specific person that would cause a reasonable person to feel fear. Individuals must have feared for their safety or that of a family member as a result of the course of conduct, or have experienced additional threatening behaviors. People were classified as stalking victims if they responded that they experienced at least one of seven types of stalking behaviors on two or more separate occasions.

If the victims did not express fear about the behaviour, then the survey classified the behaviour as harassment.

The most common types of stalking behavior reported by victims were:

receiving unwanted phone calls from the offender (66 percent)

receiving unsolicited letters or email (31 percent)

having rumors spread about them (36 percent).

Nearly a third of victims reported that offenders were equally likely to show up at places with no reason to be there or wait for the victim at a particular location.

During a 12-month period an estimated 14 in every 1,000 people age 18 or older were victims of stalking.

About half were stalked for 6 months or less.

11% of victims said that they had been stalked for 5 years or more.

About half (46%) of stalking victims experienced at least one unwanted contact per week.

The risk of stalking victimization was highest for people who were divorced or separated—34 per 1,000, about double the rate for those who had never married, and about 4 times the rate of those who were married or were widowed.

Women were almost 3 times at greater risk than men for stalking victimisation; however, women and men were equally likely to experience harassment. Men were just as likely to be stalked by another man as by a woman.

Male (37%) and female (41%) stalking victims were equally likely to be reported to the police.

Approximately 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or instant messaging (35%).

46% of stalking victims felt fear of not knowing what would happen next.

Nearly 3 in 4 stalking victims knew their offender in some capacity.

Technology has become a quick and easy way for stalkers to monitor and harass their victims. More than one in four stalking victims reported that some form of cyberstalking was used. The forms of cyberstalking and their rate is extraordinary:

email (83% of all cyberstalking victims) - which was consistent for both stalking and harassment

instant messaging (35 percent for cyberstalking victims)

one in eight cyberstalking victims were subject to stalking or harassment on blogs or bulletin boards.

Electronic monitoring of some kind was used to stalk one in 13 victims. 81% of cyberharassment victims were subject to computer spyware

Video or digital cameras were equally likely as listening devices or bugs to be used to track victims.

Stalking victims most often identified the stalker as a former intimate (30 percent) or a friend, roommate, or neighbour (16 percent).

Depending upon the severity of the stalking, victims suffered a range of emotions as they experienced stalking. The most common fears cited by victims were not knowing what would happen next (46 percent) and being afraid the behavior would never stop (29 percent). Nine percent of stalking victims reported that their worst fear was death.

About 130,000 victims reported that they had been fired or asked to leave their job because of the stalking. About one in eight of all employed stalking victims lost time from work because of fear for their safety or to pursue activities such as getting a restraining order or testifying in court. More than half of these victims lost five days or more from work.

The most common victim perceptions for why the unwanted contacts stopped were that:

Before a person can file in the Family or Federal Magistrates Court about their children, with some exceptions such as urgency, domestic violence or child abuse, they must have a certificate from a registered family dispute resolution practitioner- someone such as a mediator at a Family Relationships Centre.

The purpose of the certificate is clear- to encourage parents from sorting out their differences without automatically going to court, and hopefully never going to court.

The certificates have had four elements to them:

a) _______________________ (party or parties) did not attend family disputeresolution with me and the other party or parties to the proceedings butthatperson’s failure to do so was due to the refusal, or the failure, ofthe otherparty or parties to the proceedings to attend.(b)_______________________(party or parties) did not attend family disputeresolution with me and theother party or parties to the proceedings becauseI consider, having regard tothe matters mentioned in subregulation25 (2) [ domestic violence and abuseetc] , that it would not beappropriate to conduct the proposed family disputeresolution.(c)_______________________ (parties) attended family disputeresolution with meand all attendees made a genuine effort to resolve the issueor issues indispute.(d) _______________________ (party or parties) attendedfamilydispute resolution with me and the other party or parties to theproceedingsbut _______________________ (party or parties) did not make agenuineeffort to resolve the issue or issues in dispute.

The key to the power of these certificates is of course that the mediator can say that a party was not making a genuine effort. Because there is a requirment to lodge the certificate in court, this may be a powerful indication to a judge as to who is the problem.

(e) _______________________ (party or parties) began attending family disputeresolution with me and the other party or parties to the proceedings but Iconsider, having regard to the matters mentioned in subregulation 25 (2),that it would not be appropriate to continue the family dispute resolution.

Presumably it has been added so that those parties who should have been excluded from family dispute resolution but slipped through the cracks can now be excluded after family dispute resolution has started.

When you're trying to divide up the money, it's a good idea to try and avoid going to court if at all possible. Court should be considered as the option of last resort as matters in court tend to be more expensive, more stressful and take longer to resolve.

I came across an article by MSNBCtalking about the relative benefits of mediation, collaborative law and going to court.

What struck me about the article was the comparative approach taken by the Boston Law Collaborative, which reviewed 199 of its files. The figures are in US dollars:

The firm analyzed 199 of its recent divorce cases, and found that mediation,collaborative divorce and litigation all produced high rates of successfulsettlement. Mediation was by far the least expensive option, with a median costof $6,600, compared to $19,723 for a collaborative divorce, $26,830 forsettlements negotiated by rival lawyers, and $77,746 for full-scale litigation.

Saturday, 7 February 2009

The Family Court has told us time and time again that under the Family Law Act there is a four step regime to assessing property settlement:

identify and value the net property and financial resources of the parties

assess and weigh up the financial and non-financial contributions of each of the parties

consider any future factors under section 75(2) of the Family Law Act, then

come up with a result that is fair (or just and equitable, to use the jargon).

It's in that context that we have the bizarre case of Richard and Dawnell Batista from New York. Dawnell is a nurse who has accused her husband, Richard of domestic violence. It appears that Dawnell had kidney disease. When her donated kidney stopped working, Dawnell received another.

Her version is...

That her sister donated it. But wait on- that failed- so he donated it.

if he had not donated the kidney then his wife would have died, and therefore it was a substantial contribution by him;

and if he can't get the money, in theory he wants the kidney returned!

Imagine that if the judge does find that the husband did contribute the kidney- is it property? Clearly it would be a non-financial contribution, but what weight would be given to that contribution? Can a kidney be valued as the expert is alleged to have said?

And to top it all off...

Unlike Australia, where section 121 of the Family Law Act prevents identification of the parties in court proceedings, the parties and their lawyers are filmed leaving the court. The lawyers for each of the parties have plenty to say why their client is right (and the other client is wrong).

Wednesday, 4 February 2009

From America comes the tale that in the midst of a court fight about their daughter, the mother removed the head of the daughter's teddy bear to place a digital recorder in teddy's body, so as to be able to record what happened back at the father's home.

Being absolutely committed to the recordings, mum made sure dozens of hours were recorded over several months. Being a "helping" grandfather, the mum's father transcribed the recordings, adding his own spin on what was said.

Mum then tried to introduce the recordings in their family court fight. It turns out that the recordings were illegal in Nebraska, as well as reviewing illegal recordings, and not surprisingly the family court judge refused to allow the recordings into evidence.

Mum presumably was seeking to decrease the amount of time between dad and their daughter, but ended up in a shared care arrangement. What is perhaps surprising is that the court did not remove the child from her care, although apparently the case is continuing.

Dad in turn, along with others is now suing mum, her father and her then lawyers.

When the daughter comes over to dad's place he makes sure he now zaps the bear and other items in the microwave to make sure that they are bugfree.

Initial thoughts

The case clearly illustrates the lengths people will go to in bitter disputes.

It also illustrates that when that elusive thing called trust breaks down, it can take a long while to get back- hence dad zapping the bear in the microwave, because he cannot trust mum to not do it again.

The position here...

It is often seen as a low trick for recordings to be made between husband and wife. They could result, in cases like this, in a child being removed from the parent undertaking the recording, and being placed in the care of the other, with a break of all contact between the child and the recording parent.

The law concerning recordings is different from State to State, although phone recordings are subject to Federal law. Because I am a Brisbane family lawyer, I will only deal with the situation in Queensland.

if the person communicates or publishes to any other person a private conversation, or a report of, or of the substance, meaning or purport of, a private conversation, that has come to his or her knowledge as a result, direct or indirect, of the use of a listening device used in contravention of section 43.

There are some exceptions, but not relevant to these facts.

Could the mother have used the recordings in proceedings here?Answer: Probably not.

In family law proceedings, the chances of the recordings being used are very low. Proceedings in the Federal Magistrates Court and Family Court are generally governed under the Commonwealth Evidence Act. [Similar legislation applies in NSW and Victoria.] Section 138 of that Act prohibits unlawfully or improperly obtained evidence from being admitted, although giving a discretion to a judge to let such evidence in.

The matters the judge can take into account as to whether to let the recordings in include:

the probative value of the evidence;

the importance of the evidence in the proceeding;

the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding;

the gravity of the impropriety or contravention;

whether the impropriety or contravention was deliberate or reckless;

whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights;

whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Across all parenting styles, children of authoritative parents have the best emotional adjustment. They have lower amounts of aggression and depression and higher self-esteem.

Children who had at least one authoritative parent, did significantly better than children with any other parenting style combinations except when both parents were authoritative.

Children of absent/disengaged parents had significantly more depression and aggression and lower self-esteem than all the other groups.

Children with permissive parents rated themselves as more depressed than those children who had at least one authoritative parent.

Children whose parents were both absent exhibited the highest levels of aggression.Only 17% of the children rated both of their parents as being authoritative. However, 40% rated their mothers as authoritative and their fathers as permissive.

In cases of divorce, the parent with whom the child lived with the most was more likely to be authoritative.

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.